Mitchell v. St. Louis & S. F. R. Co.

• Decision Date: 01 October 1906
• Citation: 97 S.W. 552,122 Mo. App. 50
• Court: Missouri Court of Appeals
• Parties: MITCHELL v. ST. LOUIS & S. F. R. CO.

97 S.W. 552

122 Mo. App. 50

MITCHELL v. ST. LOUIS & S. F. R. CO.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

Rehearing Denied November 19, 1906.

1. RAILROADS — CROSSING ACCIDENT — EVIDENCE —SUFFICIENCY.

In an action for injuries, received in a crossing accident, evidence held sufficient to show the crossing within the limits of the city.

2. SAME—CONTRIBUTORY NEGLIGENCE.

The fact that the view of one approaching a railroad crossing was obstructed, he being in a position to hear warning signals, and listening for them, did not require him to stop his horse, and go forward on foot to a place where an unobstructed view could be obtained.

3. SAME—QUESTION FOR JURY.

In an action for injuries sustained in a crossing accident the question of contributory negligence held one for the jury.

4. SAME—PROXIMATE CAUSE.

Where plaintiff, before driving upon a railroad track, looked, but saw no train, but his horse became frightened at a train which approached without warning signals, and a collision ensued, owing to the horse running in front of the locomotive, the negligence in failing to give the signals was the proximate cause of the injury.

Ellison, J., dissenting.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Frank Mitchell against the St. Louis & San Francisco Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. F. Parker and Woodruff & Mann, for appellant. A. E. Spencer, D. Decker and Gardner & Cameron, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries received by plaintiff at the crossing of a public street and defendant's railroad tracks in the city of Joplin. The judgment was for plaintiff in the sum of $3,000, and defendant appealed.

Plaintiff lived in Chitwood, a few miles distant from Joplin. On January 9, 1905, he accompanied a Mr. Hotchkiss, an acquaintance, on a trip to the latter city, where he had some business to transact. They rode in a buggy drawn by one horse owned by Hotchkiss, who acted as driver. In returning home they traveled westward along a public thoroughfare called "Main Street," in Smelter Hill. This street is 60 feet wide and, at a place in the west side of Joplin, crosses defendant's railroad at a right angle. Defendant maintains three tracks at this place. Those on the east and west sides are sidetracks and that in the middle the main line. Witnesses gave the distance between the east track and main line at from 40 to 55 feet and the distance from the east track to the east line of the right of way, at 35 feet. An unbroken row of buildings, extending for some distance east of the right of way along the south side of the street, prevented a view to a person advancing from the east of trains approaching from the south on defendant's tracks and a similar chain of buildings on the north side of the street shut off the view in that direction.

From the evidence of plaintiff it appears that Hotchkiss drove in a moderate trot until they reached a point about 30 feet from the east track, when he reduced speed to a walk. There was some snow on the ground. The weather was moderately cold, and a light wind was blowing from the northwest. The two men had their ears uncovered, and were both looking and listening for the approach of trains. The buggy made no noise, and had the engine, with which they afterwards collided, given any warning signals of its approach, both were in condition to hear such signals in time to have stopped the horse before reaching the east track. This track was filled with standing freight cars, with the exception of an opening about 25 feet wide left at the crossing for the passage of vehicles. These cars extended southward the whole length of the sidetrack, a distance of 600 feet or more. The space between this line of cars and the buildings on the south side of the street next to the right of way was occupied by a pile of telegraph poles sufficiently high to prevent a view to the occupants of the buggy of an approaching train from the south. Plaintiff claims that the buildings, pile of poles, and freight cars formed a continuous and complete obstruction so that no view of a train coming from the south was afforded until they reached the opening between the cars at the crossing of the east track. When they were on the crossing, plaintiff looked south. He could see down the main track 40 or 50 yards, and, seeing no train, then looked north. At that moment the horse jumped in fright and, though Hotchkiss put forth every effort to restrain him, plunged forward across the space between the two tracks. As they neared the main line crossing plaintiff again looked south, and saw a passenger train approaching rapidly, the engine of which was not more than 50 feet away. The next instant the collision occurred. Hotchkiss was killed, and plaintiff, badly injured, was carried on the pilot of the engine until it stopped.

The evidence of plaintiff is to the effect that the train, in approaching the crossing, was running at a speed of 20 or 25 miles per hour. The bell was not rung at any time, nor was the whistle sounded until the moment of the collision. Plaintiff pleaded and introduced in evidence an ordinance of the city of Joplin forbidding the running of railroad trains, within the corporate limits of the city, at a greater speed that 12 miles per hour. The negligence alleged in the petition includes the acts of running at a higher rate of speed than that permitted by the ordinance and in failing to "ring the bell at a distance of 80 rods from said crossing, and to sound said whistle at intervals until said locomotive had crossed said highway." The answer contains a general denial, and a plea of contributory negligence.

Defendant's evidence tended to show a state of facts that would absolve it from the imputation of the negligence charged, and to sustain its contention that both occupants of the vehicle were guilty of contributory negligence, but, as all issues of fact have been settled in plaintiff's favor by the verdict of the jury, we accept as proven the facts and inferences reasonably to be drawn therefrom that support his contention. Our chief concern is with the questions, arising under defendant's insistence, that its instruction in the nature of a demurrer to the evidence should have been given. The acceptance of the facts adduced by plaintiff indisputably leads to the conclusion that defendant was negligent in the respects alleged in the operation of its train while approaching the crossing. Assuming that the crossing was within the corporate limits of Joplin, the provisions of section 1102. Rev. St. 1899, required defendant to begin ringing the bell 80 rods therefrom, and to continue ringing until the crossing had been passed. The alternative of ringing the bell or sounding the whistle applies to crossings in the country. Van Note v. Railroad, 70 Mo. 641; Turner v. Railroad, 78 Mo. 578; Terry v. Railroad, 89 Mo. 586, 1 S. W. 746. But not to crossings of public streets in cities. Kennayde v. Railroad, 45 Mo. 255; Weller v. Railroad, 164 Mo. 180, 64 S. W. 141, 86 Am. St. Rep. 592. Defendant neither sounded the whistle nor rang the bell, and therefore was negligent whether the crossing was situated within the corporate limits of the city or was in the country.

In this connection we will notice the point, made by defendant, that the evidence fails to show the...